Strategies

COVID-19, Executive Order 2020-21, and Business Interruption Insurance

The halting effect of COVID-19 and Governor Whitmer’s Executive Order 2020-21 on Michigan businesses is unrivaled in recent memory.  Unforeseen interruptions to businesses and their income, however, are not.  In addition to conventional CGL coverage, for decades insurers have offered insurance products that protect businesses from financial strain resulting from unexpected business...

Is the Coronavirus Pandemic an “Act of God” Under the Common Law?

While most of us are rightly saying we have never seen anything like this before, there have been pandemics and the law does remember them and record what happened during them.  Many of the legal issues that will be raised in the coming months and years arising out of the closures caused by the Coronavirus are not “unprecedented” – at least not in the common law.  In fact,...

The Michigan Court of Appeals Clarifies Intent, Remedy, and Valuation Considerations in Shareholder Oppression Actions

Recently, the Michigan Court of Appeals addressed three issues commonly raised in shareholder oppression or member oppression actions: (1) whether a plaintiff must prove that the defendant intentionally engaged in unfair and oppressive conduct; (2) whether a court can order a specific remedy for the plaintiff on the plaintiff’s motion for summary disposition; and (3) whether valuations of a...

New Discovery Rules Update – The Scope of Allowable Discovery has Narrowed

As practitioners are now aware, effective January 1, 2020, the Michigan Court Rules regarding discovery have been amended, changing them significantly.  One of the key changes has been to the “scope” of discovery.  Previously, the Michigan Court Rules provided that the scope of discovery had two limits placed on it: (1) the discovery had to be “relevant to the subject matter...

Michigan Supreme Court Addresses the Ability to Add Non-Party At Fault Through Amendment of the Complaint

By Matthew Smith Notices of non-party fault are common and frequently lead to multi-defendant, multi-tiered litigation.  After a plaintiff asserts one or more claims against a defendant, MCR 2.112(K)(3)(a) requires defendant to file a notice identifying any non-party the defendant believes “is wholly or partially at fault.” The notice “must be filed within 91 days after the party...

Michigan Supreme Court Makes Two Clarifications to the Summary Disposition Standard

By Stephen McKenney The Michigan Supreme Court recently clarified the standard for evaluating motions for summary disposition based on the plaintiff’s failure to state a claim for relief (i.e., MCR 2.116(C)(8)).  The July 10, 2019 opinion in El-Khalil v Oakwood Healthcare, Inc. (Docket No. 157846) made two important holdings regarding how trial courts should evaluate: (1) pleading the...

Michigan Supreme Court Adopts New Civil Discovery Rules

By Stephen McKenney Culminating a years-long review process – the progress of which we have been tracking closely – the Michigan Supreme Court made it official in June 2019: it has adopted the State Bar of Michigan’s Civil Discovery Amendments.  The changes to the civil discovery rules will become effective January 1, 2020.  The new rules are available online. ...

Wait, What Happened to MCR 2.114?

By Steve McKenney Michigan state court litigators are familiar with MCR 2.114, the court rule that, among other things, authorizes the court to impose sanctions against a party or an attorney for filing any paper with the court that is not well grounded in fact or warranted by existing law.  MCR 2.114 is the main tool courts use to punish parties and attorneys for taking a frivolous...

Expert Witnesses Beware – The Court of Appeals Expands Professional Malpractice Liability

By Laura DePonio In a case of first impression, the Michigan Court of Appeals recently ruled that expert witnesses in professional malpractice actions may themselves be sued for malpractice if their testimony is not competent.  The court ruled that witness immunity does not apply to bar all claims against expert witnesses. Voutsaras v. Mogill, issued January 3, 2019 (Docket No...

Declarations Allowed to Replace Affidavits (on a Limited Basis) in Michigan State Courts

By Matt Smith Amidst the September 1, 2018 e-filing uniformity revisions to MCR 1.109, the Michigan Supreme Court inched a bit closer to providing Michigan state court litigators a tool previously reserved for federal practice – the unsworn, un-notarized declaration.  For those unfamiliar with this creature of federal statute, please check out the prior post here:...